181 Ky. 659 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming.
The appellant, N. L. Harris, owned a lot, in the city of Louisville, which had a front of fifty feet and depth of one hundred and ten feet. The appellee, Louisville Trust Company, had a mortgage lien upon it to secure a debt for borrowed money, of $786.00. The appellee filed its petition in equity to secure personal judgment against the appellants, and an enforcement of its lien. Process upon the petition was duly served upon the appellants, but, they took no notice of the action. In proper time, a judgment was rendered,by default, against appellant, N. L. Harris, for the debt and the costs of the action, and a judgment for the sale of the lot to satisfy the judgment. The description of the lot, which was contained in the mortgage, and which was filed with the petition, showed it to be a single lot. The description in the petition followed the description in the mortgage. The petition contained an averment, that the lot coulcl not be divided without materially impairing its value, and the prayer requested a sale of the entire lot, and the application of a sufficiency of the proceeds, as might be necessary, to satisfy it, to the payment of appellee’s debt and costs. The judgment of the court was to the effect, that the lot was indivisible, without material impairment of its value, and adjudged that the lot be sold as a whole. The advertisement of the sale by the commissioner and the sale were in strict conformity to the judgment. The lot was appraised at the sum of $1,300.00. The sale was' regularly reported, and the appellants then filed exceptions to the confirmation of the sale, upon the ground that the lot was sold as a whole, and was susceptible of division without material impairment of its value, and that by reason of its being sold as a whole, it brought greatly less than its value. In support of the exception,
The court overruled the exception and ordered the report of the sale confirmed, and from this judgment this appeal is prosecuted.
As said, heretofore, the sale was made in conformity) to the judgment, and if it had not been so done, it would have resulted necessarily in the setting aside of the sale. Jarboe v. Calvin, 4 Bush 75; Cofer v. Mibler, 7 Bush 546; Hahn v. Pindell, 1 Bush, 538.
It was held, in Booker v. City of Louisville, 25 R. 497, where the petition alleged that the real estate sought to be sold was not divisible, without material impairment of its value, and the court had ordered it to be sold as a whole, that after the sale the owner of the property,' could not make available an exception to the sale on account of the property being divisible, where he had failed to make an issue upon .that question before judgment.) This seems to have been so held upon the ground that the-defendant, and owner of the land sought to be sold wasl estopped to claim after the judgment and sale, that the land was divisible without material impairment of it,si value, when in the petition seeking the sale, it had been1 averred, that the land was not susceptible of division, and the defendant had not denied such averment and permitted the court to adjudge a sale of it as a whole. When it is sought to have adjudged a sale of the real estate of infants to pay the debts of an ancestor, the well settled! -fule in this jurisdiction is, that if it is desired to self more land, than is necessary to pay the debts, it must bei averred and proven by evidence, that the land is not susceptible of division, without the material impairment of its value. Carter v. Crow’s Admr., 130 Ky. 49; Auxier v. Clark, 26 R. 890; Talbott v. Campbell, 23 R. 2198; Gill, v. Lane, 26 R. 267; Elliott v. Fowler’s Guardian, 112 Ky.
It has been consistently held, that' the court may by an examination of the pleadings determine whether the lands, sought to be sold, are susceptible or not susceptible of division, and an agreement of the parties, affidavits nor a report of a commissioner is necessary, if the pleadings so describe the land as to enable the court to deJ termine whether or not it can be divided without materially impairing its value. McFarland v. Garnett, 10 R. 91; Mays v. Carman, 23 R. 2216; Wigginton v. Nehan, 25 R. 617; Burge v. Chestnut, 121 S. W. 989; Guest v. Foster, 159 Ky. 1. In the instant case an examination of the petition, which was verified, shows the land to consist of a! single lot, and the averment of the petition, that the lot is indivisible without material impairment of its value,may, at least be considered the affidavit of appellee’s officer upon that subject. Hence, there seems to have' been a sufficiency, in the pleadings, to enable the court to determine whether the lot should be sold as a whole ori divided, as required by section 694, Civil Code. It is clear, that, if the appellant had answered, when sued, and put in issue the divisibility of the land, and such issue had been determined by the court, an exception to the report of the sale upon that ground, would have been an attempt to raise a question, which was res adjudicata. If an allegation is properly made in the petition and the defendant does not answer nor put the matter pleaded in issue, the judgment by default is as conclusive, as if a
The judgment is, therefore, affirmed..